F.H. Buckley on Why He Is Not an Originalist
Michael Ramsey
At Law & Liberty, F.H. Buckley: Why I Am Not an Originalist (responding to this post by Roger Pilon). From the introduction:
The best arguments are often between people who agree on just about everything, and so it is with me and my good friend Roger Pilon. For while we’d be hard-pressed to find ourselves at odds over the problems of the day, we do disagree about the canons of constitutional interpretation. He is an originalist who argues that the Constitution’s meaning is to be found in its text, while I say that originalism is either wrong or self-defeating.
...
If Roger is right, a judge is bound to give effect to the words of a constitution, however unjust or wrong-headed they might seem. The American Constitution, a fascist constitution, it’s all the same to an originalist. Any attempt to mitigate the rigors of a racist constitution would therefore be condemned by the originalist. But I don’t think many of us would agree with this. Even a liberal constitution may stand in need of judicial tweaking, and the best example of that is the 1867 British North America (BNA) Act that united Canada.
Professor Buckley is an insightful scholar -- in particular, I highly recommend his book on executive power The Once and Future King: The Rise of Crown Government in America (Encounter Books 2014). But I think his assessment of originalism and its alternatives is mistaken. Here's his concluding paragraph:
Is it all politics, then? If it were, I might indeed be an originalist, in America at least. And in 2020 at least, not 1857. But the rule of law means that it can’t be all politics. Instead, we must seek some neutral ground between a false originalism that at its core is politically right-wing and the left-liberalism of recent Supreme Court jurisprudence. That entails a legal regime in which majority decisions of the Supreme Court are legitimately the law of the land, even if one thinks them ill-considered. But in that case, we might, with the benefit of experience, learn how those rules have coarsened and harmed us, and false starts enacted by a temporary Supreme Court majority might prudently be reversed without waiting for a politically impossible constitutional amendment. That’s not the judicial revolution the originalist wants, but then good lawyers instinctively mistrust revolutions.
This passage posits a "rule of law" that provides a "neutral ground." But what is Buckley's "neutral ground" and "rule of law" if it's not fidelity to the law's text and original meaning? The paragraph suggests "majority decisions of the Supreme Court ... even if one thinks them ill-considered." To be sure, stare decisis is an important consideration, and most originalists would agree. But past decisions cannot provide the broad neutral ground Buckley supposes. First, most contested questions of modern constitutional law do not have a Supreme Court decision directly on point. What would Buckley have us do then, if not examine the text and its original meaning? It seems inevitable that judges would turn to policy judgments (and in any event Buckley provides no alternative). Second, no one thinks stare decisis is an inflexible command, and indeed Buckley urges that decisions that "have coarsened and harmed us ... might prudently be reversed." But on what "neutral ground" shall we decide which decisions "have coarsened and harmed us"? There is none; this is necessarily a policy conclusion.
That Buckley wants judges making policy conclusions is apparent from the body of the essay. He praises the Canadian Supreme Court's interpretation of the BNA Act because "the Court shifted power from Ottawa to the provinces; and if you’re a federalist, as Roger and I are, I should have thought you’d be pleased with this." That is a policy assessment. If you're not a federalist, you won't be pleased about it. Federalism, in this sense, is a preferred policy outcome. Originalism says that the Court's BNA Act interpretation should be evaluated on whether it was a sound assessment of the text and original meaning of the BNA Act. Professor Buckley says that it should be evaluated on whether it advanced his particular ideological commitments. It's fine to criticize originalism on this ground, but let's be clear that the proposed alternative is not a "neutral ground" or the "rule of law" -- it is a preferred policy outcome.
I agree that we should "seek some neutral ground between a false originalism that at its core is politically right-wing and the left-liberalism of recent Supreme Court jurisprudence." True originalism (which at its core is sometimes politically right-wing and sometimes not) is a possible neutral ground. Buckley, instead, wants to replace the Court's left-liberal policy-oriented jurisprudence with right-conservative policy-oriented jurisprudence. That's a reasonable position to have, but it's not neutral ground. And in the end, it makes constitutional law, if not "all politics," at least mostly politics.